§46-4 - County zoning.

§46-4 County zoning. (a) This section
and any ordinance, rule, or regulation adopted in accordance with this section
shall apply to lands not contained within the forest reserve boundaries as
established on January 31, 1957, or as subsequently amended.

Zoning in all counties shall be accomplished
within the framework of a long-range, comprehensive general plan prepared or
being prepared to guide the overall future development of the county. Zoning
shall be one of the tools available to the county to put the general plan into
effect in an orderly manner. Zoning in the counties of Hawaii, Maui, and Kauai
means the establishment of districts of such number, shape, and area, and the
adoption of regulations for each district to carry out the purposes of this
section. In establishing or regulating the districts, full consideration shall
be given to all available data as to soil classification and physical use
capabilities of the land to allow and encourage the most beneficial use of the
land consonant with good zoning practices. The zoning power granted herein
shall be exercised by ordinance which may relate to:

(1) The areas within which agriculture, forestry,
industry, trade, and business may be conducted;

(2) The areas in which residential uses may be regulated
or prohibited;

(3) The areas bordering natural watercourses,
channels, and streams, in which trades or industries, filling or dumping,
erection of structures, and the location of buildings may be prohibited or
restricted;

(4) The areas in which particular uses may be
subjected to special restrictions;

(5) The location of buildings and structures designed
for specific uses and designation of uses for which buildings and structures
may not be used or altered;

(6) The location, height, bulk, number of stories,
and size of buildings and other structures;

(7) The location of roads, schools, and recreation
areas;

(8) Building setback lines and future street lines;

(9) The density and distribution of population;

(10) The percentage of a lot that may be occupied,
size of yards, courts, and other open spaces;

(11) Minimum and maximum lot sizes; and

(12) Other regulations the boards or city council find
necessary and proper to permit and encourage the orderly development of land
resources within their jurisdictions.

The council of any county shall prescribe
rules, regulations, and administrative procedures and provide personnel it
finds necessary to enforce this section and any ordinance enacted in accordance
with this section. The ordinances may be enforced by appropriate fines and
penalties, civil or criminal, or by court order at the suit of the county or
the owner or owners of real estate directly affected by the ordinances.

Any civil fine or penalty provided by ordinance
under this section may be imposed by the district court, or by the zoning
agency after an opportunity for a hearing pursuant to chapter 91. The
proceeding shall not be a prerequisite for any injunctive relief ordered by the
circuit court.

Nothing in this section shall invalidate any
zoning ordinance or regulation adopted by any county or other agency of
government pursuant to the statutes in effect prior to July 1, 1957.

The powers granted herein shall be liberally
construed in favor of the county exercising them, and in such a manner as to
promote the orderly development of each county or city and county in accordance
with a long-range, comprehensive general plan to ensure the greatest benefit
for the State as a whole. This section shall not be construed to limit or
repeal any powers of any county to achieve these ends through zoning and
building regulations, except insofar as forest and water reserve zones are
concerned and as provided in subsections (c) and (d).

Neither this section nor any ordinance enacted
pursuant to this section shall prohibit the continued lawful use of any
building or premises for any trade, industrial, residential, agricultural, or
other purpose for which the building or premises is used at the time this
section or the ordinance takes effect; provided that a zoning ordinance may
provide for elimination of nonconforming uses as the uses are discontinued, or
for the amortization or phasing out of nonconforming uses or signs over a
reasonable period of time in commercial, industrial, resort, and apartment
zoned areas only. In no event shall such amortization or phasing out of
nonconforming uses apply to any existing building or premises used for
residential (single-family or duplex) or agricultural uses. Nothing in this
section shall affect or impair the powers and duties of the director of
transportation as set forth in chapter 262.

(b) Any final order of a zoning agency
established under this section may be appealed to the circuit court of the
circuit in which the land in question is found. The appeal shall be in
accordance with the Hawaii rules of civil procedure.

(c) Each county may adopt reasonable standards
to allow the construction of two single-family dwelling units on any lot where
a residential dwelling unit is permitted.

(d) Neither this section nor any other law,
county ordinance, or rule shall prohibit group living in facilities with eight
or fewer residents and that are licensed by the State as provided for under
section 321-15.6, or in an intermediate care facility/mental retardation-community
for persons, including mentally ill, elder, disabled, developmentally disabled,
or totally disabled persons, who are not related to the home operator or
facility staff; provided that those group living facilities meet all applicable
county requirements not inconsistent with the intent of this subsection and
including building height, setback, maximum lot coverage, parking, and floor
area requirements.

(e) No permit shall be issued by a county
agency for the operation of a halfway house, a clean and sober home, or a drug
rehabilitation home unless a public informational meeting is first held in the
affected community. The State shall provide notification and access to
relevant information, as required, under chapter 846E.

A clean and sober home shall be considered a
residential use of property and shall be a permitted or conditional use in
residentially designated zones, including but not limited to zones for
single-family dwellings.

(f) For purposes of this section:

"Clean and sober home" means a house
that is operated pursuant to a program designed to provide a stable environment
of clean and sober living conditions to sustain recovery and that is shared by
unrelated adult persons who:

(1) Are recovering from substance abuse;

(2) Share household expenses; and

(3) Do not require twenty-four-hour supervision,
rehabilitation, or therapeutic services or care in the home or on the premises;

provided that the home shall meet all applicable
laws, codes, and rules of the counties and State.

"Developmentally disabled person"
means a person suffering from developmental disabilities as defined under
section 333F-1.

"Disabled person" means a person with
a disability as defined under section 515-2.

"Drug rehabilitation home" means:

(1) A residential treatment facility that provides a
therapeutic residential program for care, diagnosis, treatment, or
rehabilitation for socially or emotionally distressed persons, mentally ill
persons, persons suffering from substance abuse, and developmentally disabled persons;
or

(2) A supervised living arrangement that provides
mental health services, substance abuse services, or supportive services for
individuals or families who do not need the structure of a special treatment
facility and are transitioning to independent living;

provided that drug rehabilitation homes shall not
include halfway houses or clean and sober homes.

"Elder" means an elder as defined
under section 356D-1.

"Halfway house" means a group living
facility for people who:

(1) Have been released or are under supervised
release from a correctional facility;

(2) Have been released from a mental health treatment
facility; or

(3) Are receiving substance abuse or sex offender
treatment; and

are housed to participate in programs that help them
readjust to living in the community.

"Intermediate care facility/mental
retardation-community" means an identifiable unit providing residence and
care for eight or fewer mentally retarded individuals. Its primary purpose is
the provision of health, social, and rehabilitation services to the mentally
retarded through an individually designed active treatment program for each
resident. No person who is predominantly confined to bed shall be admitted as
a resident of such a facility.

"Mental health treatment facility"
means a psychiatric facility or special treatment facility as defined under
section 334-1.

"Mentally ill person" has the same
meaning as defined under section 334-1.

"Totally disabled person" means a
"person totally disabled" as defined under section 235-1.

"Treatment program" means a
"substance abuse program" or "treatment program", as those
terms are defined under section 353G-2.

(g) Neither this section nor any other law,
county ordinance, or rule shall prohibit the use of land for employee housing
and community buildings in plantation community subdivisions as defined in
section 205-4.5(a)(12); in addition, no zoning ordinance shall provide for
elimination, amortization, or phasing out of plantation community subdivisions
as a nonconforming use. [L 1957, c 234, pt of §6 and §9; am L Sp 1959 2d, c 1,
§§26, 38; am L 1965, c 140; Supp, §138-42; HRS §46-4; am L 1980, c 203, §1; am
L 1981, c 229, §2; am L 1982, c 54, §5; am L 1985, c 272, §3; am L 1986, c 177,
§1; am L 1987, c 109, §2, c 193, §1, and c 283, §4; am L 1988, c 141, §§5, 6
and c 252, §1; am L 1989, c 313, §1; am L 1990, c 67, §3; am L 1997, c 350,
§15; am L 2004, c 212, §2; am L 2005, c 139, §3; am L 2006, c 237, §2; am L
2007, c 249, §7]

Cross References

Zoning within land use districts, see §§205-5, 6.